High Court Division ;
(Special Original Jurisdiction)
Md Emdadul Huq J
Md Khurshid Alam
Sarkar J
Judgment
August 2nd, 2015.
Badruzzaman Khan
(Md) …………Petitioner
vs
Government of the People’s Republic of Bangladesh and others ………… Respondents
Bangladesh Madrasha Education Board (Governing Body and Managing Body Committee) Regulation, 2009
Regulation 5(3)
The local MP can at best make a recommendation to the Principal of the Madrasha in the consultative process under Regulation 5(3). But the Principal is not legally bound to follow that recommendation and he is required to make his own judgment and to prepare a panel of three persons. The power to take the decision judgment lies with the Chairman of the Madrasha Board. Thus the impugned nomination is a clear violation of law (18)
Md Humayun Kabir, Advocate-For the Petitioner.
Md Khurshedul Alam, DAG-For the Respondent.
Judgment
Md Emdadul Huq J: Upon an application under Article 102(2)(a)(i) of the Constitution, a Rule Nisi was issued in this case with regard to the lawful authority of the Registrar of the Bangladesh Madrasha Education Board (shortly the Madrasha Board) (Respondent No.4) in issuing the office order as contained in Memo No. Prosha/4032/4/ Record No. Netrakona-5 dated 28-12-2014 and thereby nominating respondent No. 6 as the President of the Governing Body of the Krisnapur Darul Ulum Islamia Alim Madrasha Khaliajuri, Netrakona (shortly the Madrasha) and also about the legal effect of that office order.
2. The petitioner claims that he, at the time of establishment of the Madrasha, donated 40 decimals of land in favour of the Madrasha and thus from the very inception he has been a donor member of the Madrasha which is an Alim level Madrasha.
3. The tenure of the last Governing Body of the Madrasha expired on 17-6-2014. So the Registrar of the Madrasha Board issued a letter dated 17-6-2014 forming an adhoc committee for the Madrasha for a period of 6(six) months with a direction to the Principal of the Madrasha (Respondent No.7) to form to a regular Governing Body. Accordingly, on 6-11-2014, election for formation of the Governing Body was held, and the Principal sent a letter dated 6-11-2014 to the Madrasha Board containing the list of the elected members. The Principal also requested the Madrasha Board for nominating the President of the Governing Body and annexed a DO letter issued by the local Member of Parliament (MP) wherein the name of Respondent No.6 was recommended for appointment as President of the Governing Body.
4. Thereafter the Registrar of the Madrasha Board, by the impugned letter dated 28-12-2014, illegally nominated Respondent No.6 as the President of the Governing Body.
5. Petitioner claims that the aforesaid nomination of the President of the Governing Body is in violation of Regulation 5(3) of the evsjv??? ???????? ?????? ?????, ???? (??????? ??? ? ????????? ?????) ????????????, 2009 (shortly the Regulations 2009). Hence the writ petition.
6. At the hearing, Mr. Md. Humayun Kabir, the learned Advocate for the petitioner submits that, as per Regulation 5 of the Regulations, 2009, the local MP has the option to select four Madrasha within his constituency and to express his desire that he himself intends to become the President only of those 4 (four) Madrashas.
7. Mr Kabir, the learned Advocate, next submits that, in case of other Madrashas, the local MP is not legally entitled to express his desire or to make recommendation for the purpose of appointment of the President of any other Madrasha, whether in favour of himself or any other person.
8. Mr Kabir, the learned Advocate, next submits that in case of other Madrashas, the respective Principal of the Head of the Madrasha is required by Regulation 5(3) of the Regulations, 2009 to send the names of three persons after consultation with the various local elites including the MP as specified in Regulation 5(3) and to send a panel of three persons to the Board which is’- the final authority to select one of those persons as the President of a Madrasha irrespective of the chronology of the names appearing in the panel.
9. Mr Kabir, the learned Advocate, lastly submits that the above provisions were violated in the instant case and therefore the Rule should be made absolute.
10. Mr Khurshed Alam the learned Deputy Attorney-General submits that he has no specific instruction on the matter.
11. The issue before this Court is whether the nomination of Respondent No.6 by the Madrasha Board by the impugned Memo as the President of the Governing Body of the Madrasha was lawful or not.
12. Reply to this issue is contained in Regulation 5 of the Regulations, 2009 which is quoted below, (underlines added)
??? “?? ??????? ???? ?????? ???????- (?) ??? ??????? ????????? ????? ?????? ????????? ?????? ??????? ????? ?????? ??????????????? ??? ?????? ???????? ???? ?????? ????????? ??????? ???? ??????? ??????? ????? ????? ??????? ??? ???? ?????? ??????, ?? ????????????? ????????? ??? ????? ???????? ???????? ?????? ??????????, ?????? ????? ??????? ???????? ?????? ???????????? ?????? ??? ?? ???? ?? ???
(?) ??-???????? (?) ?? ???? ??????? ??????? ??????? ???? ??????? ????????? ???? ?????, ????? ????????? ?????? ??¯?’? ?? ??? ???? ?????? ???????? ????????? ??????? ????? ????? ?”??? ????? ????????, ????????? ?? ????????????? ???? ??????? ???????????? ???? ?????? ???????? ?????? ?????? ??? ???? ???????? ???? ????????? ???????? ?????? ???????????????? ?????? ?????? ?????? ?????????? ???? ?????
(?) ??-???????? (?) ?? ???? ???? ?????? ???????? ???????? ?????? ???????? ???? ?????? ???????? ????????? ??????? ???? ?????? ???????? ??????? ?????????? ??????, ??????? ????????? ???? ????? ? ???????????? ??????????? ???? ???????????, ???????? ????? ????? ???? ??????? ???????????, ????? ??????? ?????? ?????????, ?????? ?? ????????????? ??????? ??????????? ????? ??????? ?????????, ??????? ???????????? ??????? ?? ??????? ????????? ????-???????? ???? ???? ????? ???????? ??? ? ???? ?”??????? ??????? ???? ?????? ?????? ??? ??????? ?????????? ???????? ?????????? ??????????? ???? ??? ????? ????????? ?????? ?????? ?????? ???????
(?) ??-???????? (?) ?? ???? ?????????? ??????????? ????? ?????????? ????????? ??????? ???????? ???????? ??????????????? ?????? ???? ???? ???
13. It is evident that Regulation 5(1) and 5(2) have clearly limited the option of an MP to select four Madrashas for which he can himself become the President of the Governing Body. Regulation 5(3) has also specified the procedure to be followed in the selection of the President of the Governing Body of other Madrashas to the effect the Principal/Head of the Madrasha shall prepare a panel of three people utter consultation with local elites including the MP. However the Chairman of the Madrasha Board is the final authority to select the President.
14. From Annexure-B, being an application dated 6-11-2014 sent by the Principal-in-charge of Madrasha to the Chairman of the Madrasha Board, it is revealed that the Principal has referred the DO letter of the local MP and has requested the Chairman for nomination of Respondent No.6 with a reference to Regulations 5(1) and 5(2) with a further reference to the recommendation made by the local MP in the annexed DO letters.
15. Evidently the Principal has failed to comply with the requirement of Regulation 5(3) of sending a panel of three people. The reference to Regulations 5(1) and 5(2) in his letter gives a clear indication that the Principal misread those provisions. These provisions allow the MP to express his desire to be the president himself only for four Madrashas. These provisions do not allow an MP to make recommendation to the Chairman of the Madrasha Board. The letter of the MP is quoted below:
????? ? ?-??-????
???? ? ????????? ????? ?????????? ??????? ???????? ????? ???? ???????? ???? ????????? ?????? ?????? ??????? ???? ?????? ?????? ?????????
????????? ????? ?????? ??????, ???????? ??????? ?????? ?????, ???? (??????? ??? ? ????????? ?????) ????????????, ???? (???? ??????? ???????) ?? ? ?????????? ??-???????? (?) ? (?) ????? ??????? ???? ???? ????????? ????? ??? ????????? ? ?? ?????????? ??????? ????? ????? ???? ???????? ???? ????????? ?????? ??????? ???? ?????? ?????? ???? ????????? ??????? ????? ??????????? ???? ????? ??????? ?????? ???? ??? ??? ?????? ?????? ???????? ?????-?????????? ??? ??????? ?????
???? ??????????????? ?????????, ??????? ???????????? ? ????????? ?????????
??? ??? ?????????? ????? ????? ?????
?????? ?
?????????? ???????? ???????? ?????? ?????, ???? ?????, ?????
?????????
Rebecca Momin, MP
Chairman
Standing Committee on Ministry of Women & Children Affairs.
Bangladesh Parliament”.
16. Apparently this letter of the MP appears to be innocent. But the result of this letter that it indirectly influenced the Principal and also the Madrasha Board not to make their own judgment for selection of the President of the Governing Body, and ultimately the Madrasha Board nominated the Respondent No.6 as recommended by the local MP.
17. Thus the nomination of respondent No.6 as the President is the result of an indirect influence of the local MP and the resultant failure of the Principal and Madrasha Board to comply with the requirement of regulation 5(3) of the Regulations 2009.
18. The local MP can at best make a recommendation to the Principal of the Madrasha in the consultative process under Regulation 5(3). But the Principal is not legally bound to follow that recommendation and he is required to make his own judgment and to prepare a panel of three persons.
The power to take the decision lies with the Chairman of the Madrasha Board. Thus the impugned nomination is a clear violation of law.
19. In view of the above we hold that the impugned letter dated 28-12-2014 issued under the signature of the Registrar of Bangladesh Madrasha Education Board is without any lawful authority and hence of no legal effect and that a direction should be given to the Principal and the Madrasha Education Board to follow Regulation 5(3).
20. In the result, the Rule is made absolute. The impugned Memo No. Prosha/ 4032/4/Record No. Netrakona-5 (Annexure-C) issued under signature of the Respondent No.4 being the Registrar of Bangladesh Madrasha Education Board is hereby declared to be without lawful authority and is of no legal effect.
21. Respondent No.7 being the Principal of Krisnapur Darul Ulam Alum Madrasha Khaliajuri, Netrakona is directed to send the names of three people to the Madrasha Education Board for nomination of the President of the Governing Body of the Madrasha and Respondent No. 4 being Chairman of the Madrasha Education Board is directed to take his own decision and to nominate the said President in accordance with cÖweavb 5(3) Ges 5(4) of evsjv??? ???????? ?????? ?????, ???? (??????? ??? ? ????????? KwgwU) cÖweavbgvjv, 2009 within 30 days from the receipt of the copy of this judgment and order and to communicate his decision the said Principal.
No order as to cost.
Send at once a copy of this judgment and order to the respondent Nos. 3 and 7.
(Special Original Jurisdiction)
Md Emdadul Huq J
Md Khurshid Alam
Sarkar J
Judgment
August 2nd, 2015.
Badruzzaman Khan
(Md) …………Petitioner
vs
Government of the People’s Republic of Bangladesh and others ………… Respondents
Bangladesh Madrasha Education Board (Governing Body and Managing Body Committee) Regulation, 2009
Regulation 5(3)
The local MP can at best make a recommendation to the Principal of the Madrasha in the consultative process under Regulation 5(3). But the Principal is not legally bound to follow that recommendation and he is required to make his own judgment and to prepare a panel of three persons. The power to take the decision judgment lies with the Chairman of the Madrasha Board. Thus the impugned nomination is a clear violation of law (18)
Md Humayun Kabir, Advocate-For the Petitioner.
Md Khurshedul Alam, DAG-For the Respondent.
Judgment
Md Emdadul Huq J: Upon an application under Article 102(2)(a)(i) of the Constitution, a Rule Nisi was issued in this case with regard to the lawful authority of the Registrar of the Bangladesh Madrasha Education Board (shortly the Madrasha Board) (Respondent No.4) in issuing the office order as contained in Memo No. Prosha/4032/4/ Record No. Netrakona-5 dated 28-12-2014 and thereby nominating respondent No. 6 as the President of the Governing Body of the Krisnapur Darul Ulum Islamia Alim Madrasha Khaliajuri, Netrakona (shortly the Madrasha) and also about the legal effect of that office order.
2. The petitioner claims that he, at the time of establishment of the Madrasha, donated 40 decimals of land in favour of the Madrasha and thus from the very inception he has been a donor member of the Madrasha which is an Alim level Madrasha.
3. The tenure of the last Governing Body of the Madrasha expired on 17-6-2014. So the Registrar of the Madrasha Board issued a letter dated 17-6-2014 forming an adhoc committee for the Madrasha for a period of 6(six) months with a direction to the Principal of the Madrasha (Respondent No.7) to form to a regular Governing Body. Accordingly, on 6-11-2014, election for formation of the Governing Body was held, and the Principal sent a letter dated 6-11-2014 to the Madrasha Board containing the list of the elected members. The Principal also requested the Madrasha Board for nominating the President of the Governing Body and annexed a DO letter issued by the local Member of Parliament (MP) wherein the name of Respondent No.6 was recommended for appointment as President of the Governing Body.
4. Thereafter the Registrar of the Madrasha Board, by the impugned letter dated 28-12-2014, illegally nominated Respondent No.6 as the President of the Governing Body.
5. Petitioner claims that the aforesaid nomination of the President of the Governing Body is in violation of Regulation 5(3) of the evsjv??? ???????? ?????? ?????, ???? (??????? ??? ? ????????? ?????) ????????????, 2009 (shortly the Regulations 2009). Hence the writ petition.
6. At the hearing, Mr. Md. Humayun Kabir, the learned Advocate for the petitioner submits that, as per Regulation 5 of the Regulations, 2009, the local MP has the option to select four Madrasha within his constituency and to express his desire that he himself intends to become the President only of those 4 (four) Madrashas.
7. Mr Kabir, the learned Advocate, next submits that, in case of other Madrashas, the local MP is not legally entitled to express his desire or to make recommendation for the purpose of appointment of the President of any other Madrasha, whether in favour of himself or any other person.
8. Mr Kabir, the learned Advocate, next submits that in case of other Madrashas, the respective Principal of the Head of the Madrasha is required by Regulation 5(3) of the Regulations, 2009 to send the names of three persons after consultation with the various local elites including the MP as specified in Regulation 5(3) and to send a panel of three persons to the Board which is’- the final authority to select one of those persons as the President of a Madrasha irrespective of the chronology of the names appearing in the panel.
9. Mr Kabir, the learned Advocate, lastly submits that the above provisions were violated in the instant case and therefore the Rule should be made absolute.
10. Mr Khurshed Alam the learned Deputy Attorney-General submits that he has no specific instruction on the matter.
11. The issue before this Court is whether the nomination of Respondent No.6 by the Madrasha Board by the impugned Memo as the President of the Governing Body of the Madrasha was lawful or not.
12. Reply to this issue is contained in Regulation 5 of the Regulations, 2009 which is quoted below, (underlines added)
??? “?? ??????? ???? ?????? ???????- (?) ??? ??????? ????????? ????? ?????? ????????? ?????? ??????? ????? ?????? ??????????????? ??? ?????? ???????? ???? ?????? ????????? ??????? ???? ??????? ??????? ????? ????? ??????? ??? ???? ?????? ??????, ?? ????????????? ????????? ??? ????? ???????? ???????? ?????? ??????????, ?????? ????? ??????? ???????? ?????? ???????????? ?????? ??? ?? ???? ?? ???
(?) ??-???????? (?) ?? ???? ??????? ??????? ??????? ???? ??????? ????????? ???? ?????, ????? ????????? ?????? ??¯?’? ?? ??? ???? ?????? ???????? ????????? ??????? ????? ????? ?”??? ????? ????????, ????????? ?? ????????????? ???? ??????? ???????????? ???? ?????? ???????? ?????? ?????? ??? ???? ???????? ???? ????????? ???????? ?????? ???????????????? ?????? ?????? ?????? ?????????? ???? ?????
(?) ??-???????? (?) ?? ???? ???? ?????? ???????? ???????? ?????? ???????? ???? ?????? ???????? ????????? ??????? ???? ?????? ???????? ??????? ?????????? ??????, ??????? ????????? ???? ????? ? ???????????? ??????????? ???? ???????????, ???????? ????? ????? ???? ??????? ???????????, ????? ??????? ?????? ?????????, ?????? ?? ????????????? ??????? ??????????? ????? ??????? ?????????, ??????? ???????????? ??????? ?? ??????? ????????? ????-???????? ???? ???? ????? ???????? ??? ? ???? ?”??????? ??????? ???? ?????? ?????? ??? ??????? ?????????? ???????? ?????????? ??????????? ???? ??? ????? ????????? ?????? ?????? ?????? ???????
(?) ??-???????? (?) ?? ???? ?????????? ??????????? ????? ?????????? ????????? ??????? ???????? ???????? ??????????????? ?????? ???? ???? ???
13. It is evident that Regulation 5(1) and 5(2) have clearly limited the option of an MP to select four Madrashas for which he can himself become the President of the Governing Body. Regulation 5(3) has also specified the procedure to be followed in the selection of the President of the Governing Body of other Madrashas to the effect the Principal/Head of the Madrasha shall prepare a panel of three people utter consultation with local elites including the MP. However the Chairman of the Madrasha Board is the final authority to select the President.
14. From Annexure-B, being an application dated 6-11-2014 sent by the Principal-in-charge of Madrasha to the Chairman of the Madrasha Board, it is revealed that the Principal has referred the DO letter of the local MP and has requested the Chairman for nomination of Respondent No.6 with a reference to Regulations 5(1) and 5(2) with a further reference to the recommendation made by the local MP in the annexed DO letters.
15. Evidently the Principal has failed to comply with the requirement of Regulation 5(3) of sending a panel of three people. The reference to Regulations 5(1) and 5(2) in his letter gives a clear indication that the Principal misread those provisions. These provisions allow the MP to express his desire to be the president himself only for four Madrashas. These provisions do not allow an MP to make recommendation to the Chairman of the Madrasha Board. The letter of the MP is quoted below:
????? ? ?-??-????
???? ? ????????? ????? ?????????? ??????? ???????? ????? ???? ???????? ???? ????????? ?????? ?????? ??????? ???? ?????? ?????? ?????????
????????? ????? ?????? ??????, ???????? ??????? ?????? ?????, ???? (??????? ??? ? ????????? ?????) ????????????, ???? (???? ??????? ???????) ?? ? ?????????? ??-???????? (?) ? (?) ????? ??????? ???? ???? ????????? ????? ??? ????????? ? ?? ?????????? ??????? ????? ????? ???? ???????? ???? ????????? ?????? ??????? ???? ?????? ?????? ???? ????????? ??????? ????? ??????????? ???? ????? ??????? ?????? ???? ??? ??? ?????? ?????? ???????? ?????-?????????? ??? ??????? ?????
???? ??????????????? ?????????, ??????? ???????????? ? ????????? ?????????
??? ??? ?????????? ????? ????? ?????
?????? ?
?????????? ???????? ???????? ?????? ?????, ???? ?????, ?????
?????????
Rebecca Momin, MP
Chairman
Standing Committee on Ministry of Women & Children Affairs.
Bangladesh Parliament”.
16. Apparently this letter of the MP appears to be innocent. But the result of this letter that it indirectly influenced the Principal and also the Madrasha Board not to make their own judgment for selection of the President of the Governing Body, and ultimately the Madrasha Board nominated the Respondent No.6 as recommended by the local MP.
17. Thus the nomination of respondent No.6 as the President is the result of an indirect influence of the local MP and the resultant failure of the Principal and Madrasha Board to comply with the requirement of regulation 5(3) of the Regulations 2009.
18. The local MP can at best make a recommendation to the Principal of the Madrasha in the consultative process under Regulation 5(3). But the Principal is not legally bound to follow that recommendation and he is required to make his own judgment and to prepare a panel of three persons.
The power to take the decision lies with the Chairman of the Madrasha Board. Thus the impugned nomination is a clear violation of law.
19. In view of the above we hold that the impugned letter dated 28-12-2014 issued under the signature of the Registrar of Bangladesh Madrasha Education Board is without any lawful authority and hence of no legal effect and that a direction should be given to the Principal and the Madrasha Education Board to follow Regulation 5(3).
20. In the result, the Rule is made absolute. The impugned Memo No. Prosha/ 4032/4/Record No. Netrakona-5 (Annexure-C) issued under signature of the Respondent No.4 being the Registrar of Bangladesh Madrasha Education Board is hereby declared to be without lawful authority and is of no legal effect.
21. Respondent No.7 being the Principal of Krisnapur Darul Ulam Alum Madrasha Khaliajuri, Netrakona is directed to send the names of three people to the Madrasha Education Board for nomination of the President of the Governing Body of the Madrasha and Respondent No. 4 being Chairman of the Madrasha Education Board is directed to take his own decision and to nominate the said President in accordance with cÖweavb 5(3) Ges 5(4) of evsjv??? ???????? ?????? ?????, ???? (??????? ??? ? ????????? KwgwU) cÖweavbgvjv, 2009 within 30 days from the receipt of the copy of this judgment and order and to communicate his decision the said Principal.
No order as to cost.
Send at once a copy of this judgment and order to the respondent Nos. 3 and 7.
